Opinion
HHDCV196106635S
10-30-2019
Alex Ilchenko v. Weslyn Orellana-Ventura et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION
Cesar A. Noble, J.
Before the court is the defendant’s motion to strike paragraph nine of the first and second count of the plaintiff’s complaint, which seek inconvenience damages, as well as claims for costs and fees included in the prayer for relief, on the grounds that such damages cannot properly be awarded in property damage suits. For the following reasons the court grants the defendant’s motion to strike paragraph nine of the plaintiff’s complaint along with the costs and fees section of his prayer for relief.
The plaintiff, Alex Ilchenko, filed a two-count complaint on January 29, 2019, alleging the following facts. In count one, the plaintiff alleges that on or about July 7, 2017, he was operating his 2017 Tesla Model X when he was involved in an accident with the defendant, Weslyn Orellana-Ventura, who was negligently operating his motor vehicle on a roadway in Stamford, Connecticut. The defendant’s inattentiveness and lack of reasonable observation of other vehicles on the road prevented him from stopping in time to avoid colliding with the plaintiff’s automobile. Although there is no allegation of any personal or bodily injury associated with the accident, the plaintiff’s vehicle suffered significant damage that necessitated considerable repairs and resulted in the loss of use and diminution of the vehicle’s value. Additionally, the plaintiff has "suffered inconvenience, lost time, loss of life’s enjoyment to do other things and annoyance due to the consequence of having to handle the aftermath of the accident claims, car repair, and other reasonable steps to rectify the property damage caused by the aforementioned events." (Plaintiff’s Complaint p. 2.)
For the purposes of this memorandum, all references made to the defendant pertain to the defendant/driver, Weslyn Orellana-Ventura.
In count two, the plaintiff incorporates the same factual allegations contained in paragraphs three through nine of count one, along with additional allegations levied against the defendant, A2Z Contractors, LLC (A2Z). A2Z has a principal place of business in Stamford, Connecticut, and was the owner of the motor vehicle operated by the defendant at the time of the accident. The defendant was operating this motor vehicle within his general authority as proscribed through his employment with A2Z, which imparts potential liability on the company pursuant to General Statutes § § 14-154a and 52-183.
As a result of the aforementioned accident, the plaintiff’s prayer for relief seeks the following recovery: monetary damages for the diminished value of his motor vehicle; monetary damages for the loss of use of his vehicle; monetary damages for other consequential damages; the costs and disbursements, including fees; and any other relief the court may deem just and proper in equity. At issue in the present case is the portion of the plaintiff’s prayer for relief seeking costs, disbursements, and fees.
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in a manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint ..." Practice Book § 10-39(a). "Practice Book ... § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Santorso v. Bristol Hospital, 208 Conn. 338, 349, 63 A.3d 940 (2013).
In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011) the court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 298 n.1) and quoted parenthetically the following language from that case: "Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action ... Since 1978, however, the Practice Book has not contained such a constraint." (Internal quotation marks omitted.). The court in Coe v. Board of Education, also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV- 04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439, 440), and quoted parenthetically the following language from that case: "Prior case law ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint ... the proper course for the court is to strike those allegations only ..." (Internal quotation marks omitted.) Id. Furthermore, in Donovan v. Davis, 85 Conn. 394, 397-98, 82 A.1025 (1912), the court stated: "A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]. The only remedy by which to test the sufficiency of a cause of action or defense, whether stated in one pleading, count or defense, or in a paragraph or paragraphs thereof, is a [motion to strike]." (Internal quotation marks omitted.) See, e.g., Tiplady v. Maryles, 158 Conn.App. 680, 701-02 and n.9, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015).
"There is no specific appellate guidance regarding the legal sufficiency of inconvenience damages in a property damage action, specifically a motor vehicle damage action." Piecuch v. Courtney, Superior Court, judicial district of New Haven, Docket No. CV-18-6082079-S (May 10, 2019, Wilson, J.) (2019 WL 2511889) . "The majority view [of the Connecticut Superior Court] holds that inconvenience, annoyance, and certain other consequential damages, including emotional distress, lost time, and loss of life’s enjoyment are not recoverable in a motor vehicle diminished value claim." Id. "Inconvenience, lost time, loss of life’s enjoyment to do other things and annoyance due to the consequence of having to handle the aftermath of the accident such as claims, car repair, and other reasonable steps to rectify the property damage [are not recognized] as being harm of the same general nature as that which a reasonably prudent person in the defendants’ position should have anticipated, in view of what the defendants knew or should have known at the time of the accident." Id. In Piecuch, the court granted the defendant’s motion to strike, based on a similar set of factual circumstances to the present case, and held that "[u]nder the majority view, the claims alleged by the plaintiff ... are legally insufficient and cannot be recovered in a motor vehicle damage action as they are not proper elements of damages in such a case. In addition, the inconvenience damages alleged are not a category of damages that is recognized as being of the same general nature as the foreseeable risk created by the defendant’s action, because such damages are not reasonably anticipated by a defendant at the time of the accident." Id.
In another case, Gniadek v. Edwards, Superior Court, judicial district of New Britain, Docket No. HHB-CV-18-6047499-S (April 16, 2019, Morgan, J.) (68 Conn.L.Rptr. 336, 337) (2019 WL 2245947), the court stated that "[t]his court agrees with the Superior Courts [cited herein] who have considered the legal sufficiency of the plaintiff’s claim for inconvenience damages (i.e., damages for inconvenience, lost time, loss of life’s enjoyment to do other things and annoyance due to the consequence of having to handle the aftermath of the accident) and finds that such a claim is legally insufficient and not a proper element of damages in this case. In so holding, the court adopts the reasoning of Henderson holding that such damages are not compensable under the Restatement (Second) of Torts and the reasoning of Adipietro holding that such damages are not recoverable because they are not part of the foreseeable risk created by the defendant’s alleged negligence." (Internal quotation marks omitted.) Additionally, the court in Labbe v. Farrelly, Superior Court, judicial district of Hartford, Docket No. HHD-CV-18-6090777-S (December 19, 2018, Gordon, J.) (2018 WL 8693935), denied the plaintiff’s claim for inconvenience damages and largely followed the reasoning set forth in Henderson v. Ripka, Superior Court, judicial district of Hartford, Docket No. HHDCV- 16-6072393-S (October 30, 2017, Shapiro, J.) (65 Conn.L.Rptr. 408) (2017 WL 5923341), "[t]he Henderson court also concluded that the plaintiff’s claims for lost wages and inconvenience damages were insufficient as a matter of law in a case involving the diminished value of personal property. Similarly, lost wages, and inconvenience damages are not a compensable component of damages for claims such as the plaintiff alleges here for property damage." (Citations omitted; internal quotation marks omitted.). Furthermore, in Henderson v. Ripka, supra, Superior Court, Docket No. HHD-CV- 16-6072393-S.) (65 Conn.L.Rptr. 408, 409), the court discussed another analogous case, Ippolito v. McKelvey, Superior Court, judicial district of Fairfield, Docket No. FBT-CV-15-6052262-S (January 18, 2017, Thim, J.T.R.) (63 Conn.L.Rptr. 747, 748) (2017 WL 715921), and stated that "[t]he plaintiff did not sustain physical injury. Although the plaintiff’s vehicle was repaired at the defendant’s expense, the plaintiff sought to recover the diminished value of the vehicle, as well as punitive damages, attorneys fees, pre judgment interest, and inconvenience damages ... The plaintiff’s request for an award of damages was collectively comprised of these inconveniences, as well as an award for loss of life’s enjoyment to do other things, and attorneys fees. While the court ultimately awarded the plaintiff the diminished value of her vehicle, finding it a proper element of damages; the court denied the plaintiff’s inconvenience damages concluding that they were not a proper element of damages in this case. Therefore, these issues are not matters of first impression, as they were succinctly addressed in [the Ippolito decision]. (Citations omitted; internal quotation marks omitted.)
Multiple additional Superior Court cases have granted motions to strike under similar factual circumstances and have held that inconvenience damages are legally sufficient in property damage actions. See Murano v. Roach, Superior Court, judicial district of New Britain, Docket No. HHB-CV-17-6041142-S (December 27, 2018, Wiese, J.) (2018 WL 8693934) (followed the reasoning of multiple factually analogous cases in denying the plaintiff’s claim for inconvenience damages as a result of motor vehicle property damage suit); see also Adipietro v. Kedersha, Superior Court, judicial district of Fairfield, Docket No. FBT-CV-18-6073040-S (November 21, 2018, Stewart, J.) (67 Conn.L.Rptr. 786) (2018 WL 7813723) (holding that inconvenience damages were not a part of the foreseeable risk associated with a car accident and therefore were not recoverable). "[I]t appears that no court has recognized that harm such as inconvenience, lost time, loss of life’s enjoyment to do other things and annoyance due to the consequence of having to handle the aftermath of the accident such as claims, car repair, and other reasonable steps to rectify the property damage as being harm of the same general nature as that which a reasonably prudent person in the defendants’ position should have anticipated, in view of what the defendants knew or should have known at the time of the accident." (Internal quotation marks omitted.) Adipietro v. Kedersha, supra, Superior Court, Docket No. FBT-CV- 18-6073040-S (67 Conn.L.Rptr. 786, 787).
Although Superior Courts have overwhelmingly followed the majority view that inconvenience damages are not recoverable in property damage suits, a minority view seems to leave open the possibility for their viability in limited circumstances. In Muckle v. Pressley, Superior Court, judicial district of Middlesex, Docket No. CV-15-6013126-S (March 30, 2017, Domnarski, J.) (64 Conn.L.Rptr. 188, 189) (2017 WL 1429932), aff’d, 185 Conn.App. 488, 197 A.3d 437 (2018), the court left open the potential viability of inconvenience damages and stated that "[i]t is incumbent on the party asserting either direct or consequential damages to provide sufficient evidence to prove such damages ... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." The court in Piecuch v. Courtney, supra, Superior Court, Docket No. CV-18-6082079-S, further expounded on that decision in stating that: "The trial court in Muckle explained that inconvenience damages may be recoverable by the plaintiff in a motor vehicle diminution of value action, however, such damages are not recoverable by the mere assertion of inconvenience. The plaintiff’s alleged loss must be based on a measurable monetary loss caused by the inconvenience claimed, or in other words, the plaintiff must demonstrate a sufficient basis for estimating her inconvenience damages with reasonable certainty in order to recover inconvenience damages, such as with evidence of lost wages."(Citation omitted.) Although the Muckle decision appears to create the possibility for the imposition of an inconvenience damage award, no court has followed its rationale to date. Furthermore, even if the court were to follow the minority approach, the plaintiff has not sufficiently met its burden as articulated in Muckle and has failed to legally state a cause of action.
In the present case, the plaintiff has failed to provide a legally sufficient cause of action for inconvenience damages, as such damages are not proper in property damage suits. Here, the plaintiff’s vehicle was damaged as a result of an accident caused by the defendant’s negligent operation of his motor vehicle. Although the plaintiff was not injured as a result of the collision, his motor vehicle suffered significant property damage along with "inconvenience, lost time, loss of life’s enjoyment to do other things and annoyance due to the consequence of having to handle the aftermath of the accident claims, car repair, and other reasonable steps to rectify the property damage caused by the aforementioned events." (Plaintiff’s Complaint p. 2.) Although the plaintiff may have suffered significant inconveniences as a result of this accident, these annoyances alone do not create a viable or legally sufficient cause of action. These inconveniences were ancillary consequences that were not contemplated or considered by the defendant at the time of the accident and are not properly asserted as an element of such a claim. Instead of focusing on his property damage claims against the defendant, the plaintiff has asked the court to award inconvenience damages, which are not proper and have not previously been awarded in substantially similar cases, merely because the overarching inconveniences were tangentially related to the underlying accident. Even though the plaintiff may have a valid underlying claim for relief, such relief should not be extrapolated to uncontrollable ends that would encompass broadly perceived damages. "While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." Maloney v. Conroy, 208 Conn. 392, 401-02, 545 A.2d 1059 (1998). Although the plaintiff makes nebulous claims about the overall theory behind tort law and rectifying wrongs, these statements are not persuasive as they plainly ignore the relevant case law on point. The conceptual enactment of inconvenience damages is not an issue of first impression for this court to consider as its validity has already been litigated and denied on multiple occasions by the Superior Court.
In support of his claim for inconvenience damages, the plaintiff has failed to present any case law that contradicts the previously decided Superior Court decisions. Instead, the plaintiff attempts to rebrand inconvenience damages as a form of consequential damages, which he argues are recoverable in property damage cases. Even if inconvenience damages are referred to as consequential damages, which are "recognized as a recoverable item in contract and Uniform Commercial Code sale of goods disputes, they are not a category of damages that is recognized in negligence cases. Indeed, [these damages] would more properly be described as incidental damages in a contract or UCC case. Incidental damages, however, are not recognized as recoverable in negligence cases." (Citation omitted.) Adipietro v. Kedersha, supra, Superior Court, Docket No. FBT-CV- 18-6073040-S (67 Conn.L.Rptr. 786, 787 n.1). The court in Murano v. Roach, supra, Superior Court, Docket No. HHB-CV-17-6041142-S, dealt with this same issue and stated that "[t]he plaintiff refers interchangeably to inconvenience damages and consequential damages, arguing that consequential damages are recoverable in tort to compensate plaintiffs for harm suffered so long as they are foreseeable. The particular damages sought here, however, have been held non-recoverable in multiple factually analogous cases." Additionally, under the Restatement (Second), Torts § 928, which outlines compensation for harm to chattels, "does not anticipate compensation for lost wages or inconvenience damages." Henderson v. Ripka, supra, Superior Court, Docket No. HHD-CV- 16-6072393-S (65 Conn.L.Rptr. 408, 409), citing Restatement (Second), Torts § 928 Harm to Chattels (1979). Regardless of whether these claims are considered inconvenience or consequential damages, their legal sufficiency has nonetheless not been recognized by our courts.
The plaintiff also cites to numerous Appellate and Supreme Court decisions that have awarded noneconomic damages in cases that do not involve personal injury. These cases, however, are not factually analogous and allege only emotional distress claims, which were not argued in the present action. Even if the plaintiff had alleged emotional distress claims, he still would not have alleged a legally sufficient cause of action for inconvenience damages. For example, in Peck v. Perugini, Superior Court, judicial district of Fairfield, Docket No. CV-07-5012606-S (September 21, 2010, Dooley, J.) (2010 WL 4226771), the court held that "[i]t is fairly well established that to date, Connecticut has not recognized claims for negligent infliction of emotional distress arising out of situations resulting in property damage alone." In another case "Superior Courts have found that a negligent infliction of emotional distress claim based on property damage is not a legally cognizable claim in Connecticut; reasoning that where the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citations omitted; internal quotation marks omitted.) Duffy v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV-00-0274683-S (November 1, 2004, Tanzer, J.) (49 Conn.Supp. 109, 122) (862 A.2d 890). "[D]amage or destruction to property alone, despite sentimental attachment to the property cannot be the basis of recovery for emotional distress." Birbarie v. C&H Shoreline, LLC, Superior Court, judicial district of New Haven, Docket No. NNH-CV-14-6045884-S (September 22, 2014, Nazzaro, J.) (2014 WL 5394593). "[W]hen the damage to property and the basis for the emotional distress are inexplicably linked, courts have refused to allow an action for emotional distress." (Internal quotation marks omitted.) Id. It is evident that regardless of how the plaintiff attempts to characterize these claims, they are nonetheless barred by Connecticut courts. Furthermore, the plaintiff has not alleged a claim for emotional distress and has not cited any case law to suggest noneconomic awards are proper in property damage suits. Accordingly, it is submitted that the court should grant the defendant’s motion to strike paragraph nine of the plaintiff’s complaint, as it does not support a legally sufficient cause of action.
The defendant also moves to strike the portion of the plaintiff’s prayer for relief seeking costs, disbursements, and fees. It has previously been established by our courts that "[t]he right to costs must be based on some statute or authorized rule of the court." Triangle Contractors, Inc. v. Young, 20 Conn.App. 218, 221, 565 A.2d 262, cert. denied, 213 Conn. 810, 568 A.2d 795 (1989). "To the extent the plaintiff’s prayer for relief seeks an award of costs not authorized by statute or rule of practice, that portion of the prayer for relief [must be] stricken." Gniadek v. Edwards, supra, Superior Court, Docket No. CV- 18-6047499-S (68 Conn.L.Rptr. 336, 337). As an underlying principle, Connecticut generally follows the American rule. "The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ... Connecticut adheres to the American rule ... There are few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs ... or a statute may confer such rights." (Citations omitted; internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). In a similarly situated case, the court in Gniadek, held that "[t]o the extent the plaintiff seeks an equitable award of costs and attorneys fees in his prayer for relief, the court strikes that portion of his prayer for relief. This court adheres to the American rule that attorneys fees and the ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ... and agrees with the Ippolito, Henderson and Murano courts that attorneys fees are not a proper element of damages based on the plaintiff’s allegations of property damage to his motor vehicle." (Citation omitted.) Gniadek v. Edwards, supra, Superior Court, Docket No. CV- 18-6047499-S (68 Conn.L.Rptr. 336, 337). "Although the court recognizes that there are other exceptions to the American rule; e.g., as an element of punitive damages; none of those exceptions apply to this garden-variety personal property damages case." Id. Additionally, in Ippolito v. McKelvey, supra, Superior Court, Docket No. FBT-CV- 15-6052262-S (63 Conn.L.Rptr. 747, 748), the court denied a claim for inconvenience damages and attorneys fees in accordance with the American rule and held that "[c]ompensation for inconvenience and attorneys fees are not proper elements of damages in this case." Further, in Henderson v. Ripka, supra, Superior Court, Docket No. HHD-CV- 16-6072393-S (65 Conn.L.Rptr. 408, 409) the court held that "[i]n Connecticut, an award of attorneys fees is an element of punitive damages. Punitive damage awards are not ordinarily available in a contract action unless tortious conduct that is malicious, willful or reckless is alleged." Id., citing Hartford v. International Assn. of Firefighters, Local 760, 49 Conn.App. 805, 816-17, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). In finding that the allegations did not invoke equitable relief, the court found that "no contractual or statutory basis for an attorneys fees award is alleged, nor is any tortious conduct that is malicious, willful or reckless. There is no basis for an award of attorneys fees based on the plaintiff’s allegations of property damage to her vehicle. The allegations also do not invoke equitable relief." Id.
In the present case, the court does not find the plaintiff’s prayer for relief seeking costs and fees to be legally sufficient. It is well-established that Connecticut courts follow the American rule. While this rule is not without exceptions, no departure from this standard has been alleged or brought forth in the present action. In accordance with the American rule, this court is persuaded by the multiple Superior Court decisions that have held that, absent a contractual or statutory exception, attorneys fees and other costs are not proper in property damage suits. In addition, there is no evidence that the defendant’s conduct was malicious, willful, or reckless, which would allow for the imposition of fees as an exception to the established principle. Therefore, the plaintiff is not afforded any costs absent those explicitly authorized by statute, as there is no contractual agreement containing a provision for such awards.
The plaintiff has not set forth a legally cognizable cause of action for inconvenience damages nor has he provided a valid prayer for relief for costs, disbursements, and fees. Accordingly, the defendant’s motion to strike paragraph nine of both counts of the plaintiff’s complaint along with the portion of the prayer for relief seeking costs and fees is granted.